TTIP: Anti-Transparency Rules laid out in USTR letter to DG-Trade

KEI has obtained the terms of reference (TOR) for the confidentiality of the negotiating texts of the Transatlantic Trade and Investment Partnership (TTIP) Agreement. The TOR are laid out in a two-page letter from US Chief Negotiator Dan Mullaney to EU Chief Negotiator Ignacio Garcia-Bercero which is available here. The letter was obtained through a FOIA request filed by KEI with the USTR on May 19, 2014.

The introductory paragraph of the letter gives a brief nod to the importance that the Obama Administration gives to transparency before adding, “However, the United States also shares the EU’s view that a certain level of special care in handling these documents is necessary to enable mutual trust between negotiators and for each side to preserve positions taken for tactical reasons with regard to third countries with which we are or could be negotiating in the future.”

The letter acknowledges that USTR must comply with the Freedom of Information Act (FOIA), but also makes sure to note the exemptions available to them, and specifically cite classified information pursuant to Executive Order 13526, which, the letter explains, “authorizes confidential treatment of foreign government information.”

The letter outlines the overarching tenet cited for USTR’s withholding of the TTIP negotiating texts in the first confidentiality procedure listed:

(a) All documents related to the negotiation or development of the TTIP Agreement, including negotiating texts, proposals of each side, accompanying explanatory material, discussion papers, e-mails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, are shared in confidence and will be held in confidence, in accordance with Executive Order 13526.

Executive Order 13526 (mentioned in the letter as an applicable exemption for FOIA requests on the TTIP) states that information shall not be classified unless disclosure of the information can “reasonably be expected to cause identifiable or describable damage to national security.” It would seem then that the onus would and should be on USTR to prove that the information contained in negotiating texts would cause specific, identifiable damage to national security.

The availability of the documents listed in (a) to non-USTR persons is enumerated in the following section, which outlines the carve-out that would allow access to the documents by the USTR Industry Trade Advisory Committees (ITACs), and also more generally to anyone “outside the US government who participate in its internal consultation process and who have a need to review or be advised of the information,” so long as they don’t disclose the information to the general public.

(d) For the US side, this means that documents containing such information may be provided only to (1) US government officials, and (2) persons outside the US government who participate in its internal consultation process and who have a need to review or be advised of the information in these documents. Anyone provided access to the documents will be informed that they are not permitted to share the documents with persons who are not authorized to see them.

The final confidentiality procedure explains that while USTR expects the TTIP documents to be held in confidence for five years following the conclusion of the TTIP, the US will consult with the European Commission if the US seeks to release the TTIP documents earlier than five years, “for example, in response to a request for access under the FOIA.” Thus leaving the door open to the possibility of seeing the texts earlier than the five years.

So there you have it. These documents are freely available to anyone the USTR thinks “have a need” to see them. Clearly the general public is excluded by this, by design. Transparency for Washington, DC insiders, strategic ignorance for everyone else.

As we prepare for the initiation of negotiations on a Transatlantic Trade and Investment Partnership (TTIP) Agreement, I would like to thank you for your letter of July 5, 2013, describing the arrangements that the European Union (EU) has in place for the protections of negotiating documents, given the sensitive nature of their content and that apply in the context of negotiations for a TTIP Agreement. I take this opportunity to inform you of the arrangements that the United States will apply for the protection of TTIP negotiating documents, given the sensitive nature of their content. Transparency is an important principle for the Obama Administration, just as it is for the EU. However, the United States also shares the EU’s view that a certain level of special care in handling these documents is necessary to enable mutual trust between negotiators and for each side to preserve positions taken for tactical reasons with regard to third countries with which we are or could be negotiating in the future.

The US Government must comply with the Freedom of Information Act (FOIA) with regard to providing the public access to information. FOIA includes exemptions from providing the public with access to certain information, for example information classified pursuant to Executive Order 13526 of December 29, 2009, which authorizes confidential treatment of foreign government information.

To that end and in light of arrangements described in your letter, the United States is implementing the following procedures:

(a) All documents related to the negotiation or development of the TTIP Agreement, including negotiating texts, proposals of each side, accompanying explanatory material, discussion papers, e-mails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, are shared in confidence and will be held in confidence, in accordance with Executive Order 13526.

(b) While the documents specified in paragraph (a) are to be held in confidence, the documents can be mailed, e-mailed, faxed, or discussed over unsecured lines with the groups of people mentioned in paragraph (d) and the EU side. Persons in possession of these documents can store them in a locked file cabinet or within a secured building; that is, the documents do not need to be stored in safes. These documents can be created and stored on computer systems that are not subject to special security measures.

(c) Documents will be marked in a manner that makes clear that the documents will be held in confidence and treated as specified in paragraph (a). The United States will mark documents as “Confidential, Foreign Government Information-Modified Handling Authorized” and include brief instruction on handling the documents.

(d) For the US side, this means that documents containing such information may be provided only to (1) US government officials, and (2) persons outside the US government who participate in its internal consultation process and who have a need to review or be advised of the information in these documents. Anyone provided access to the documents will be informed that they are not permitted to share the documents with persons who are not authorized to see them.

(e) The United States will hold the TTIP documents in confidence for five years after entry into force of the TTIP Agreement, or if no agreement enters into force, for five years after the last round of negotiations. If the United States seeks to release documents described in paragraph (a) in advance of these dates, for example, in response to a request for access under the FOIA, the United States will consult with the European Commission regarding the continued sensitivity of the document. The United States will also notify the European Commission in the event the United States extends the period before the document is released.

Even as we outline the confidentiality procedures for these vital negotiations, certainly we are both aware of the concurrent need for public engagement and transparency to the fullest extent consistent with our efforts to successfully reach an agreement. Recognizing this, the procedures outlined in this letter should be subject to review and possible change, pursuant to discussion in advance of the implementation of any adjustments to confidentiality provisions.

I look forward to working with you towards the conclusion of a strong TTIP agreement that will realize the high objectives set out in the Final Report of the High Level Working Group to our respective leaders.

Sincerely,
L. Dan Mullaney
Assistant United States Trade Representative for Europe and the Middle East